Thursday, May 22, 2003


What’s Going on in Congress?

For health and safety activists, this year might be known as “the year of McWane.” The Frontline/New York Times series on the health and safety tragedies caused by McWane’s callous disregard for worker safety, and OSHA’s inability to crack down effectively is still reverberating. OSHA has announced a new “enhanced” enforcement policy that will look at a company’s record on a national corporate-wide basis, instead of a facility basis.

The Bush administration seems to have no intention, however, of seeking other enhancements, such as stiffer penalties and an enhanced ability to seek criminal citations and jail time for employers who willfully disregard the law and injure or kill workers.

In fact, some Republicans seem to be heading in the exact opposite direction. You may remember Congressman Charlie Norwood (R-GA), elected with the “Gingrich Class” of 1994 after running on an anti-OSHA platform, who first made a name for himself by claiming that OSHA had “killed the tooth fairy” when it issued the Bloodborne Pathogens Standard. Norwood is now chair of the House Subcommittee on Workforce Protection, the committee that oversees OSHA.

In response to the Frontline and New York Times stories of the crimes of the McWane Corporation and OSHA’s inability to bring criminal prosecutions or enforce the law effectively, Norwood has introduced a bill that would further weaken OSHA enforcement, H.R. 1583, the “Occupational Safety and Health- Fairness Act of 2003.”

Norwood claims that the bill give employers, especially small businesses, “new tools to defend themselves against Occupational Safety and Health Administration citations they believe are not justified."

New Tools. Just what they need.

And how does he propose to do this? First, before determining a fine, OSHA must consider “the size and financial condition of the business, as well as the “good faith of the employer.” (“I’m really sorry that 12 foot deep trench collapsed on those workers. We told them to be careful. Workers are our most important resource. I promise I’ll buy the equipment needed to make sure this never happens again…just as soon as we make enough money to afford it."

Does this mean that the lives of people working for a less profitable company are worth less than a more profitable company?

I guess now OSHA inspectors will have to take courses in accounting and psychology.)

And consistent with the “blame the worker” philosophy, OSHA citations would have to take into consideration “the degree of responsibility or culpability for the violation of the employer, the employees, and/or other persons.” (It is not clear whether “other persons” includes God or Mother Nature) So, if the employee was being careless, clearly the poor employer shouldn’t be cited.

Finally, to make sure that employers are “not forced into settlement when they believe OSHA is wrong, just because it is the most cost-effective option available,” Norwood’s bill requires OSHA to pay all fees and expenses of small businesses if OSHA loses the case. (The “funny” thing is that while I was at OSHA, there were numerous situations where the OSHA was reluctant to cite an employer – especially for poor ergonomic conditions – because the business – with the help of the Chamber of Commerce and other business associations – had much more money to spend on a case than OSHA did.)

So far, all Republicans on the committee have co-sponsored the bill. No Democrats have seen the (apparently well-hidden) virtues of this approach. Representative Major Owens (D-NY), ranking minority member of the Workforce Protections Committee, said that Norwood’s bill would give employers incentives to disobey the law,” according to Inside OSHA. OSHA has not stated whether it supports the bill or not.

Good News

But some sanity does exist in Congress. Senator John Corzine (D-NJ) is getting ready to introduce a bill that would significantly strengthen OSHA’s enforcement capabilities, according to Inside OSHA: “Corzine’s bill would increase from six months to 10 years the maximum criminal penalty for those who willfully violate workplace safety laws in the case of an employee fatality. In addition, the bill would increase from six months to one year the penalty for intentionally misleading an OSHA inspector." Rep. Rosa DeLauro (D-CT) is considering a similar bill in the House.

Although OSHA can currently refer cases to the Department of Justice for criminal prosecution, Justice rarely prosecutes because their resources are spread thin and the penalties are so light

In March, Corzine sent a letter to OSHA Director John Henshaw “seeking his support for legislation he will introduce that would increase criminal penalties for employers who willfully violate safety laws.”

During OSHA’s House appropriation hearing, Henshaw, responding to a question by Rep. DeLauro, stated that OSHA had a good penalty structure, but that he was willing to “work with Congress,” A code-phrase for “that’s the most ridiculous suggestion I’ve ever heard, Congresswoman, but I’m can’t say that in a Congressional hearing.”

OSHA Appropriations

At the beginning of May, Assistant Secretary of Labor for OSHA, John Henshaw testified before the House Appropriations Committee on the Administration’s proposed FY 04 budget request. To summarize the testimony:
Blah blah, blah blah, for the first time... blah blah blah voluntary blah blah blah partnerships blah blah fair enforcement blah blah blah comprehensive ergonomics program blah blah voluntary guidelines blah blah blah outreach blah blah blah compliance assistance blah blah Hispanic workers blah blah blah consultation.
If you read between the blahs, you may notice that there was no mention of new standards – like the tuberculosis standard or the standard that would require employers to pay for personal protective equipment. Both of these were on the verge of being issued when the Bush Administration was selected. Both have been moved to the back burner. Earlier this month, UFCW petitioned OSHA to issue the PPE standard and AFSCME petitioned the agency to issue the Tuberculosis standard.

The bottom line is that OSHA is asking for $450 million for FY 2004, a 3.3 million cut from the FY 2003 budget. One of the areas that the Administration is trying to cut significantly for the third year in a row is worker training grants. The administration is requesting only $4 million for FY 2004, a 60% cut from $11.75 million allocated for FY 2003. The administration also tried to cut the grant funding last year, but the Senate put the money back in and ordered OSHA to continue funding its five-year grant program that was initiated in 2000 by then-Assistant Secretary Charles Jeffress.

According to Inside OSHA, Rep. Rosa DeLauro “pointed out that the grant program is consistent with the Bush administration’s ‘goal of non-enforcement’ because the funds are used for education”

Henshaw argued that OSHA could do more with less; that $4 million would create a “grater impact” than $11 million by moving away from “one-on-one training programs.” OSHA has stated in the past that instead of training actual workers, it would like to use the training funds to develop internet based programs, which would be especially useful for immigrant workers, who would presumably run home to their trailer parks from their jobs at the poultry plant, jump on their high speed internet connection, do a little “e-training” before feeding the kids, putting them to bed and running off to their second jobs.

That’s all for now. We’ll keep you posted.